M/s. OM Narain Tripathi, Raibareli V. Income Tax Officer, Raibareli

ITA 21/LKW/2013

• Counselvise Citation: 2123714 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 15-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Assessee Lawyers: P K KAPOOR
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.21/LKW/2013 ASSESSMENT YEAR:2007-08 M/S OM NARAIN TRIPATHI M-28, AMSHPURI COLONY RAEBARELI V. INCOME TAX OFFICER RAEBARELI TAN/PAN:AABFO5446K (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. P. K. KAPOOR, C.A. RESPONDENT BY: SHRI. HARISH GIDWANI, D.R. DATE OF HEARING: 20 04 2015 DATE OF PRONOUNCEMENT: 28 04 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. BECAUSE THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A)-III, LUCKNOW ERRED IN LAW AS WELL AS IN FACTS IN NOT ACCEPTING THE STATUS OF THE APPELLANT ASSESSSEE AS FIRM INSPITE OF THIS FACT THE ASSESSEE'S CASE FOR ASSESSMENT YEAR 2005-2006 WAS COMPLETED U/S 143(3) AND ITS STATUS WAS ACCEPTED AS FIRM. IN THE YEAR UNDER APPEAL THERE WAS NO CHANGE IN THE CONSTITUTION OF FIRM AND THE BOOKS OF ACCOUNTS WERE AUDITED BY THE CHARTERED ACCOUNTANT WHICH WAS AVAILABLE TO THE ASSESSING OFFICER AT THE TIME OF HEARING OF THE CASE. THE REQUIREMENTS AS DESIRED FOR THE FIRM ARE AVAILABLE IN THIS CASE. 2. BECAUSE THE ASSESSING OFFICER AS WELL AS LEARNED CIT(A)-III ERRED IN LAW AS WELL AS IN FACTS IN DENYING THE CLAIM OF SALARY AS :- 2 -: PAID TO THE WORKING PARTNERS AT RS.54,000/- AND INTEREST OF RS. 1,85,093/- ON CAPITAL AS INVESTED IN THE FIRM BY THE PARTNERS AND BOTH THE CLAIMS WERE AS PER PROVISIONS OF PARTNERSHIP DEED. 3. BECAUSE THE LEARNED CIT(A)-III, LUCKNOW HAS APPLIED THE NET RATE OF PROFIT AT 5.5% ON THE GROSS CONTRACT RECEIPTS OF RS.2,31,31,841/- IGNORING THE JURISDICTIONAL HON'BLE ITAT ORDERS WHICH WERE PROVIDED TO THE LEARNED CIT(A). HOWEVER THE CASES AS CITED BEFORE HIM ARE GIVEN HERE AS UNDER- (I) ARVIND KUMAR CHAUDHARY VS. ACIT, GONDA ITA NO. 172/LKO/10/ASSTT. YR. 2005-06. (II) M/S SRIJAN CONSTRUCTION VS. ACIT GONDA, ITA NO. 532/LUC/07/ASSTT. YR. 2004-2005. 4. BECAUSE THE APPELLANT RESERVES TO ADD, DELETE OR ALTER ANY OTHER GROUND(S) EITHER BEFORE OR DURING THE PENDENCY OF APPEAL WITH THE PERMISSION OF CHAIR. 5. BECAUSE THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE UNJUST, UNREASONABLE AND ALSO BAD IN LAW. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS MOVED AN APPLICATION FOR ADMISSION OF THE ADDITIONAL GROUNDS, WHICH ARE AS UNDER:- '6. BECAUSE SELECTION OF CASE FOR SCRUTINY UNDER COMPULSORY NORMS (AS STATED IN THE ASSESSMENT ORDER DATED 21.12.2009) IS WHOLLY EXTRANEOUS TO THE PROVISION CONTAINED IN CLAUSE (II) OF SECTION 143(2. WITH THE CONSEQUENCE THERE WAS NO VALID NOTICE UNDER SECTION 143(2) ISSUED BY THE ASSESSING OFFICER AND SERVED ON THE APPELLANT.' '7. BECAUSE IN THE ABSENCE OF VALID NOTICE UNDER SECTION 143(2) BEEN ISSUED AND SERVED ON THE ASSESSEE, ENTIRE 'VARIATION' :- 3 -: BETWEEN THE 'RETURNED INCOME' AND 'ASSESSED INCOME' DESERVED TO BE DELETED.' 3. DURING THE COURSE OF HEARING, NO ARGUMENT WAS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE ON THE ADMISSION OF THE ADDITIONAL GROUNDS. WE, HOWEVER, HAVE EXAMINED THE GROUNDS, BUT FIND NO MERIT THEREIN AND WE REJECT THE APPLICATION FOR ADMISSION OF THE ADDITIONAL GROUNDS. 4. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT THE ASSESSING OFFICER HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND HAS PASSED THE ASSESSMENT ORDER EX- PARTE. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO PARA 9 OF THE ORDER OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT THE ASSESSEE HAS SOUGHT TIME FROM THE ASSESSING OFFICER TO PRODUCE THE BOOKS OF ACCOUNT, BILLS AND VOUCHERS AS REQUIRED BY HIM. THE REQUEST WAS ACCEDED TO BY THE ASSESSING OFFICER AND HE ADJOURNED THE HEARING TO 28.12.2009 AT 12.30PM. THOUGH THE HEARING WAS ADJOURNED TO 28.12.2009 FOR PRODUCTION OF THE BOOKS OF ACCOUNT, BILLS AND VOUCHERS, BUT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER ON 21.12.2009 WITHOUT WAITING FOR FILING OF THE REQUISITE DOCUMENTS. THEREFORE, THE ASSESSING OFFICER HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. HE HAS ALSO SUBMITTED THAT THE ASSESSEE HAS FILED THESE EVIDENCE BEFORE THE LD. CIT(A), BUT THE LD. CIT(A) DID NOT ENTERTAIN IT AND DISMISSED THE APPEAL OF THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO PARA 3.1.2 OF THE ORDER OF THE LD. CIT(A), IN WHICH THE LD. CIT(A) HAS RECORDED THAT THE ASSESSEE HAS NOT MADE COMPLIANCE OF THE NOTICES ISSUED BY THE ASSESSING OFFICER, THEREFORE, HE HAS RIGHTLY MADE THE ADDITION. THE LD. COUNSEL FOR THE ASSESSEE HAS :- 4 -: INVITED OUR ATTENTION TO THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A). COPY OF THE SAME IS AVAILABLE AT PAGES 1 TO 3 OF THE COMPILATION OF THE ASSESSEE, IN WHICH IT WAS CATEGORICALLY STATED THAT THE COPY OF THE PARTNERSHIP DEED IS ENCLOSED ALONG WITH THE WRITTEN SUBMISSIONS FOR KIND PERUSAL OF THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THE LD. CIT(A) HAS NOT TAKEN INTO ACCOUNT THE RELEVANT DOCUMENTS WHILE DISPOSING OF THE APPEAL AND HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. SINCE THE ASSESSING OFFICER AND THE LD. CIT(A) HAVE NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE ADJUDICATING THE ISSUES IN DISPUTE, THE ORDERS OF THE LOWER AUTHORITIES MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER IN THE INTEREST OF JUSTICE. 6. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDERS OF THE LOWER AUTHORITIES. 7. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS RECORDED IN PARA 9 OF HIS ORDER THAT SHRI. TRIPATHI STATED THAT HE WILL PRODUCE ALL THE DOCUMENTS AND BOOKS OF ACCOUNT, BILLS AND VOUCHERS. ON HIS REQUEST THE CASE WAS ADJOURNED TO 28.12.2009 AT 12.30PM. BUT, THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER ON 21.12.2009; MEANING THEREBY THE ASSESSING OFFICER, DESPITE HAVING FIXED THE HEARING FOR 28.12.2009, HAS PASSED THE ASSESSMENT ORDER ON 21.12.2009 EVEN WITHOUT WAITING FOR REPLY OR FILING OF THE DOCUMENTS. THE SAID DOCUMENTS WERE FILED BEFORE THE LD. CIT(A) FOR PERUSAL AND ADJUDICATION OF THE APPEAL, BUT THE LD. CIT(A) EVEN DID NOT MAKE REFERENCE OF THE AFORESAID DOCUMENTS FILED BEFORE HIM. HE HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER AND CONFIRMED THE ADDITION. THESE FACTS CLEARLY DEPICT THAT THE LD. CIT(A) AS WELL AS THE ASSESSING OFFICER HAVE NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. :- 5 -: CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES RAISED BEFORE US AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORTS OF CO-OPERATION TO THE ASSESSING OFFICER IN ADJUDICATION OF THE ISSUES RAISED BEFORE US. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH APRIL, 2015 JJ:2004 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR